Same-Sex Marriage & Religious Freedom

A New Round in an Old Debate

Paul Horwitz March 27, 2014 - 10:31am

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After Arizona Governor Jan Brewer vetoed a bill last month that amended that state’s Religious Freedom Restoration Act, onlookers on both sides of the culture wars may have breathed a sigh—of relief or of frustration, depending on which side they were on. I hope they enjoyed it, because the break’s over.

The Arizona controversy wasn’t the first and it won’t be the last. Similar bills are in various stages of development in Mississippi, Georgia, Oklahoma, and elsewhere. Brewer’s veto, with its implication that the national and state Republican establishments and business interests would oppose such legislation if it aroused too much negative attention, may tamp down the fires in some states. Elsewhere, it will only stoke them. There are some serious issues here, they are not going away, and they are rarely described accurately. In other words, we are getting yet another master class on how to hold a culture war in America. Here’s a short explanation of the issues and a few lessons for combatants and onlookers alike.

In 1990, the Supreme Court changed course after three decades of requiring judicial accommodations for religious burdens caused by general laws. In a case called Employment Division v. Smith, it held that neutral, generally applicable laws do not require an accommodation for religious believers who are incidentally burdened by those laws. But it made clear that legislative accommodations for religion were acceptable. Congress responded in 1993 with the Religious Freedom Restoration Act (RFRA), which declared that the government must show a compelling interest when it substantially burdens religious practices, whether the offending law was aimed at those practices or not. Although the Court later ruled that Congress couldn’t apply RFRA against the states, many states have passed similar statutes of their own.

Many state RFRA cases have involved things like a religious Native American student who invoked the law in the face of a school’s demand that he cut his long hair. The burden on the state was high, but it did not always lose. Some accommodations will always be refused in the face of compelling state interests. Religiously motivated child abuse, such as an arranged marriage between a minor and an adult, will still be a crime punishable by law.

Everyone knows what has happened since then: the swift rise of the gay-rights movement, increasingly successful legal and political advances toward same-sex marriage, and dramatic changes in public opinion on these issues—with increasing fervor on the other side of the issue as well, as religious traditionalists and conservatives feel buffeted and disregarded by the surrounding culture. Those views are sincere and understandable. But opposition is encouraged too by political polarization and intra-party pressure on the GOP establishment from the Tea Party, which makes these issues fertile ground for symbolic legislative action. In this environment, one case can be the spark that starts a much larger fire.

The latest spark involves Elane Photography, LLC, a business whose owners refused to photograph a same-sex couple’s commitment ceremony and were sued by one of the spouses for violating New Mexico’s antidiscrimination law. The company challenged the law on First Amendment grounds and lost, although the state supreme court’s decision focused on free speech, not religion. The case grabbed national attention. Against the backdrop of the Supreme Court’s recent same-sex marriage decisions and the pending contraceptive-mandate cases, it has sparked the current interest in revising state RFRAs in places like Arizona.

At its most basic, Arizona’s proposed law made clear that businesses as well as individuals and churches should receive legislative accommodation for religious practices; it also clarified that the state RFRA would apply as a defense to suits against religious believers by private citizens (like the spouse in the Elaine Photography case) invoking state or local laws, such as a law requiring equal treatment in places of public accommodation. But, as its defenders pointed out, the legislation did not say who should win such cases. The other side would have to meet the high burden of showing a compelling government interest, but some interests—perhaps including nondiscrimination in the case of businesses broadly catering to the public—might leap that hurdle. Kansas, by contrast, spoke in more absolute terms in its recently proposed legislation. Without allowing for “compelling interest” exceptions, the law would have allowed businesses and others to refuse to provide services that would “solemnize” or “treat as valid” same-sex marriages or unions if that would violate sincerely held religious views. That bill, too, is dead for now. But others will come. And there are a few general lessons we can take from the controversy.

1. Don’t read the papers. Anyone who read the Arizona legislation and compared it with the headlines understood that there was some pretty heavy “framing” of the issue going on. The New York Times, reporting on Brewer’s veto, said the bill “would have given business owners the right to refuse service to gay men, lesbians, and other people on religious grounds.” That’s like a writer in 1789 saying the proposed free-speech clause of the First Amendment “would allow child pornography.” The bill itself, after all, still permitted a compelling government interest to overcome a claim for religious accommodation. Just as not every speaker who makes a free-speech claim wins, so the legislation didn’t guarantee victory in any particular case. Legislation like Kansas’s was far more lopsided. But here, too, heated rhetoric was the order of the day: the air rang with cries of “Gay Jim Crow.” Or, as a headline in Slate gently put it, “Kansas’s Anti-Gay Segregation Bill Is an Abomination.” These laws raise serious concerns about the costs and benefits of religious accommodation, but they deserve more careful reporting and more serious language. Don’t trust everything you read or hear.

2. But, um, read the papers. On the other hand, there are reasons to pay attention to the public debate. (I told you not to trust everything you read.) For one thing, this is a political and cultural controversy, not just a legal one. Culture wars are as much about symbols as substance. When it suits them, each side in the current debate is happy to argue that its position is innocuous. Supporters of the RFRA amendments argue that allowing religious accommodations won’t be as disastrous as their opponents fear; opponents argue that current civil-rights laws still leave plenty of scope for religious choices. Each side says it’s the other side that’s truly dangerous. So we should appreciate that we are fighting a political battle as much as a legal one. The news stories and opinion pieces may exaggerate the legal facts, but they do illuminate a real political debate.

More important, perhaps, is this reason to listen to the arguments we are having, even if they often outstrip the legislative reality: the contending voices in this debate, including the many thoughtful church-state scholars who have spoken out on each side, are not really arguing about the effects of these laws. Arguably, they are not even debating their possible effects. The real debate is over the logic of their opponents’ positions.

Here, both sides have a point. Whether you call these laws “Gay Jim Crow” or not, the logic of legislative accommodations for individuals, let alone businesses, that object on religious grounds to the application of antidiscrimination laws does indeed pose a serious threat to our civil-rights laws, which are the foundation of a just, egalitarian modern society. It’s tough to have a regime of civil rights when every such law carries the footnote “unless you really mind.” It’s tougher still when those accommodations are triggered by an assertion of “sincere” religious objections, which courts are rightly reluctant to second-guess.

On the other side, the logic of a regime of robust egalitarianism, vigorously backed by law, leaves little room for conscientious religious objection. It tells individuals who want to engage in public and commercial life but have serious religious objections to the new settlement, “Of course there is room for you. Speak, if you must. But don’t act.” (Sometimes, as the Elane Photography case suggests, that distinction is hard to make.) And it tells them that as long as the law’s commands forbid some conduct without actively discriminating against religion, those commands are absolute. The title of law-and-religion scholar Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom, may be premature. Nonetheless, he is right to worry that “traditional religion and contemporary secular egalitarianism are at some deep level fundamentally incompatible.”

3. We are arguing about the future as much as the present. The lawyers and law professors who are raising a hue and cry on both sides ought to know that logic is not the length and breadth of the law. In law school, we all read Oliver Wendell Holmes’s classic The Common Law, the first sentence of which is: “The life of the law has not been logic; it has been experience.” Remember that even the “contraceptive mandate” over which we have been arguing so heatedly actually contains multiple exemptions for religious groups; the debate is over whether those exemptions go far enough. Few serious critics of the Arizona RFRA and other such laws think there should be no legislative accommodations for religion, although more people are now leaning in that direction. Few defenders of those laws think that religion should always trump antidiscrimination laws, although they may struggle to define exactly where the line should be drawn. As a practical matter, gays and lesbians still face substantial societal discrimination and religious individuals and groups still receive substantial legal protection.

The real question is where we are heading. The Elane Photography case, and the legislative efforts it has inspired, are just a snapshot (so to speak) of the larger questions that confront us, as general societal and legal support for gay rights moves from an improbability to a certainty and views change on matters of sexual conduct. Should sincere religious objectors (and what kind—individuals? businesses?) be given some legal shelter from antidiscrimination laws where matters such as contraception, photographing same-sex weddings or issuing same-sex marriage licenses, or providing general services to gays and lesbians are concerned? Or would those accommodations show disrespect for equality—and, by allowing individual “opt-outs” from antidiscrimination law, violate the rule of law itself?

We have been through this debate before, of course. We saw it during the advent of civil rights laws aimed at racial discrimination. Then too, there were arguments that freedom of association—and of religion too—should limit those laws’ reach. Then as now, one side warned that exemptions would make civil rights a hollow hope, and the other argued that failing to grant them would be the doom of individual autonomy. We mostly take that debate for granted today and assume that the right side won. But that’s not because the legal answer was unimpeachable. It’s because our social values changed, albeit with an assist from the law. Social values concerning the equal dignity and citizenship of gays and lesbians are now changing, even more rapidly than they did on race—and for the better, in my view. If and when they do, the number of people who are even interested in seeking accommodation for their views will diminish, just as today there are (thankfully) few businesses that would publicly seek to exclude black customers even if the law permitted it. Eventually, as gays and lesbians are viewed as full and equal participants in all walks of life, the issue should lose most of its political charge.

But we are still in the middle of that social transformation. And so the legal debate over measures like the proposed laws in Arizona, Kansas, and elsewhere is an effort to frame the future before it happens. Those on one side of the debate are trying to build a bulwark for religious conscientious objection and an ark against changes in surrounding social values. Those on the other side are eager to declare a decisive legal victory and announce preemptively, in effect, that the war over values has already been won and the losers should just surrender. The argument is not just about what the law demands in principle, but about what messages our legal choices send in light of our changing culture. One striking example of this is a letter recently issued by some prominent law and religion scholars opposing a proposed state RFRA in Mississippi. The letter questions whether we should now be passing such laws at all, arguing that whatever value state RFRAs had twenty years ago in the wake of the Supreme Court’s decision in Smith, today they “will most likely be both seen and used as a shield against enforcement of civil-rights laws (current and future).” Conversely, the current effort by religious traditionalists to pass new RFRA laws can be seen as an expression of fear that the logic of an increasingly pervasive civil-rights regime is, at bottom, antireligious.

So the debate is not just about the constitutionality of the state RFRAs and of accommodations for religion more generally; it is about their social meaning, now and in the future. If the legal claims made by each side seem extravagant—that religious accommodation will kill civil rights, or that a failure to accommodate represents the death of religious freedom—it is because the law is a crude tool for managing social transformation. And legal or philosophical “logic,” as opposed to real-world legal practice, is even cruder.

4. Expect compromise and tragedy. Can we take any encouragement from the controversy over the legislative accommodation of religion? Yes, a little. The debate over these laws has been heated, if shallow. On the ground, however, there is still room for compromise. For those of us who support LGBT equality and some form of religious accommodation, the death of some of the more unyielding state legislative proposals, often at the hands of establishment Republicans, should be cause for relief, and evidence of a dramatic change in values concerning gay rights. For those who favor much stronger religious accommodations or simply disfavor same-sex marriage and other public recognitions of same-sex dignity, even Governor Brewer’s veto might offer some comfort. After all, it demonstrated that we can still have some sort of debate about it, however distorted: that people can still argue about whether particular legislative accommodations for religion are necessary or go too far, without treating them as mandatory or impermissible altogether. In its current form, the rule of law favors nondiscrimination and equality, but does not preclude accommodation of sincere religious beliefs.

Some encouragement, then. But not much. Law is supple, but legal principles aren’t; values are negotiable, but not infinitely so. There are always trade-offs; there are always costs, benefits, and losses. Underneath the niceties and technicalities, important as they are, the debate in Arizona and elsewhere over legislative accommodations for religion is still the same old American debate between liberty and equality. We can massage the meaning of both terms, and we can seek compromises between them—up to a point. But can we satisfy both completely? Don’t hold your breath.

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Correction: An earlier version of this article incorrectly stated that scholars had written a letter opposing a proposed amendment to Mississippi's state RFRA. Mississippi does not have a state RFRA; the letter opposed a proposal to adopt one.